ELR Citation: ELR 20587
No(s). 89-6162 (2d Cir. Mar 26, 1990)

The court holds that the Environmental Protection Agency (EPA) acted within its discretion when it issued an administrative order under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) requiring a company to install stainless steel groundwater monitoring wells, where an earlier administrative consent order under the Resource Conservation and Recovery Act (RCRA) required wells but did not specify the type of material. The court first assumes that it has jurisdiction over the merits of the appeal, thus avoiding a complex analysis of the relationship of the judicial review provisions of RCRA and CERCLA. On the merits, the court holds that EPA may require the installation of stainless steel wells where the parties have voluntarily agreed in the RCRA order that wells of some kind are required but have not specified the type of material. The scientific literature provides ample justification for EPA's interpretation of the RCRA order as requiring stainless steel wells instead of polyvinyl chloride wells. That EPA translated its request for stainless steel into a CERCLA order is not dispositive.

Counsel for Plaintiff-Appellant
Stephen D. Ramsey
Sidley & Austin
1722 Eye St. NW, Washington DC 20006
(202) 429-4000

Counsel for Defendants-Appellees
Allan N. Taffet, Ass't U.S. Attorney
1 St. Andrew's Plaza, New York NY 10007
(212) 791-0055

Weinstein^* (before Meskill and Newman, JJ.)